PARTLY DISSENTING OPINION OF JUDGE RAVARANI

I was not able, regretfully, to follow my colleagues in finding a violation of the procedural limb of Article 2 in the present case.

I should start by emphasising that I can see merit in the finding that the criminal investigation in the present case lacked efficiency or, more precisely, that the prosecuting and investigating authorities showed some inconsistency while conducting the criminal proceedings. Indeed, the proceedings were started at the initiative of the applicant, then stopped by the prosecutor who found that there was no crime, then twice reopened following an appeal by the applicant and eventually stopped by the prosecutor. Such toing and froing can, at first glance, give an impression of an ineffective investigation failing to establish the truth.

However, at second glance, the attitude of the authorities becomes understandable. It is important, in this context, to have a closer look at what the case is about.

The case is not, despite the mention of the concept on three occasions in the judgment (see paragraphs 74, 92 and 94) a case of medical negligence. No doctor, no nurse, no medical staff were involved and the child was not in the care of a medical structure like a hospital. The case is closer to product liability than to medical negligence. It is a case about a breathing device with a failure of the ventilator, the question being “whether that failure had been of a mechanical nature (and in that case, whether it could and should have been anticipated and prevented) or whether it had been caused by an inadequate installation of its components or other issue caused by negligence” (see paragraph 84 of the judgment), a question which the majority consider to be the “crux of the present case” (ibid . ).

To my mind, the real crux of the case is whether there was any criminal case at all and whether there was any need to bring criminal proceedings.

According to the Court’s well-established case-law, in the absence of intent – and in the present case nobody alleged that there was any intention – Article 2 of the Convention does not necessarily require the provision of a criminal-law remedy (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215, 19 December 2017, and the case-law cited therein).

Of course, in any case where there is a casualty or if there are serious injuries, it is understandable that the victim or his or her relatives would seek to have criminal proceedings instituted, because in such a case the prosecutor has the initiative of conducting the investigation. This saves the victim the time and energy, never mind the cost, of adducing evidence himself or herself. However, it clearly flows from the Court’s case-law that Article 2 of the Convention does not entail the right to have third parties prosecuted – still less convicted – for a criminal offence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, 30 March 2016).

There is another reason why victims of medical negligence often prefer to have criminal proceedings instituted. Many victims want to see the perpetrator punished, stigmatised; they want to see the alleged offender appearing in flesh and blood before the judge. Unfortunately, civil proceedings in tort present a totally different and, at the end of the day, admittedly unsatisfactory picture. The victim will find himself or herself opposite an insurance company which defends the interests of the doctor, who does not even have to be present in the courtroom. The insurance company moreover obviously defends its own interests and will normally quite aggressively challenge any allegation of wrongdoing by its client.

However, whatever the underlying reasons for the preference for criminal proceedings, there must be, in the Spanish as well as in many other legal systems, at least some indication of a prima facie criminal case. The judgment underlines that the “public prosecution has a statutory obligation to investigate crimes” (paragraph 87 of the judgment). This statement however has to be qualified. Article 105 § 1 of the Spanish Code of Criminal Procedure (cited in paragraph 42 of the judgment) states, in this respect, that “[o]fficials of the public prosecutor’s office shall be obliged to bring, in accordance with the provisions of the law, all the criminal actions that they consider appropriate ...”. Beyond the somewhat ambiguous or even contradictory wording of this provision (and I admit my total ignorance of what this precisely means in Spanish law), it seems quite clear that the authorities are not obliged to initiate criminal proceedings at the discretion of the victim, but that they must be convinced themselves that there has been a crime, or at least that a crime could have been committed.

Pursuant to Article 142 § 1 of the Spanish Criminal Code (cited in paragraph 45 of the judgment), “any person who causes the death of another by serious negligence will be convicted of manslaughter”.

Consequently, the prosecutor must consider that there is, prima facie , a case of serious negligence. It is not for the prosecutor, even if urged to do so by a private party, to start a criminal investigation merely to find out whether there could have been serious negligence; he or she must be convinced that there are elements that point to the existence of such serious negligence.

In the present case, this essential element was lacking and the criminal authorities, confronted with a human tragedy, probably gave in – and that’s what they are ultimately being blamed for – and quite reluctantly started a criminal investigation which they tried to terminate three times, considering that there was no criminal liability.

So the bottom line, to my mind, is that there was no criminal case right from the outset and the authorities should not be blamed for not pushing laboriously to try to establish one.

This brings me to my final point. To my mind, generally speaking, in cases of bodily harm without intent and save for obvious gross negligence, especially in the realm of alleged medical negligence, the normal avenue should be the civil one. Do we really want to oblige medical staff to face a stigmatising and stressful criminal trial to defend themselves against any allegation of negligence? Or to have them put in jail for such negligence? One should be very careful about going down that route. Intent and gross negligence surely deserve criminal prosecution; incompetence, recurrent acts of negligence require administrative proceedings leading to the withdrawal of the licence to practise; occasional negligent acts – even dramatic ones leading to the death of a patient or serious injuries – should be dealt with in civil proceedings that are aimed at full monetary compensation for the victim. Criminal law is a serious tool; it should be handled with care.

The Spanish legal system provides for civil proceedings in tort that are independent from the criminal path. Such proceedings would have been, to my mind, the appropriate way of dealing with the facts of the present case which, as explained above, touch on questions of product liability. The authorities should not therefore have been blamed for failing to pursue the criminal proceedings, even though they had initially instituted them.